B.N. Sinha, President:
1. This appeal as well as Appeal No. 219 of 1992 arise out of a common order and therefore they have been heard together and they are being disposed of by a common order.
2. These two appeals are directed against order dated 26.9.92 passed by the District Forum, Patna in Complainant Case No. 198 of 1992 in which the appellant in these two appeals were the opposite party and the respondent of these two appeals who is the same person was complainant before the District Forum.
3. For the disposal of this appeal the facts of the case may be briefly stated. The complainant booked order for a Premier Padmini Car (Delux) on 8.7.91 with the Auto Distributors- O.P. No. 1 who happens to be an authorised dealer of that car at Patna and paid Rs. 1,47,540.84 through two Bank Drafts which were received by one Sri Naveen Kumar Jain who happens to be an employee, of O.P. No. 1 and a receipt in respect thereof was issued to the complainant. On 19.7.91 on a telephone talk to O.P. No. 2 the complainant was assured that on receipt of full price of the car through Bank Draft till 13.7.91 the car will be supplied to the consumers on pre-budget price as such decision has been taken by the company. The complainant was assured by Sri P.R. Sharma, Manager of O.P. No. 1 that the complainant will be getting the car on the pre-budget price. But on 10.8.91 through a letter written by Sri Sharma, Manager of O.P. No. 1 the complainant was informed that due to bad weather the Bank Draft sent by him reached on 18.7.91 and, therefore, the supply of car on the pre-budget price has become doubtful. On 16.8.91 the complainant was informed by O.P. No. 2 that the Bank Draft was received on 19.7.91 at Bombay, it was not possible for the company to supply the car on the pre-budget price. On 20.8.91 letter No. 885/91 was received by the complainant that as the draft sent by him reached Bombay on 19.7.91 the complainant has to pay an additional amount of Rs. 27,456.87 as it was not possible to supply to him the car on the pre-budget price. The complainant has further averred that though other persons has been supplied car by O.P. No. 2 on pre-budget price in similar situation the O.P. has illegally refused to supply the car to the complainant on the pre-budget price.
4. After being noticed the O.Ps. appeared and filed their counter version. Maintainability of the case under the Consumer Protection Act (here-in-after called the Act) has been challenged, and it has been also alleged that it was not possible to supply the car at the pre-budget price because die draft sent by the complainant was received at Bombay on 19.7.91 and the complainant had been informed that the car will be supplied on pre-budget price only when the payment will be received by the (O.P. No. 2) respondent No. 2 before 15.7.91. It has been denied by O.P. No. 1 that O.P. No. 1 used to sell Premier Car of Daman Quota at Patna after receipt of full payment at Patna and it has been averred that the order was placed to O.P. No. 2 and the draft was also prepared in their name and that O.P. No. 1 only used to collect the order for the car at Patna on behalf of the O.P. No. 2.
5. The District Forum has directed the appellants to supply the car on pre-budget price and also ordered for payment of Rs. 2000/- for mental agony and harassment caused to the complainant within two months from the date of the order, failing which the O.Ps. have been further directed to pay Rs. 50,000/- as compensation to the complainant.
6. Without going into merit of the case we are of the opinion that the present complaint was not maintainable under the Act. Section 2(1)(c) of the Act defines a complaint under this Act and .reads as follows:â
âComplaintâ means any allegation in writing made by a complaint thatâ
(i)Â Â as a result of any unfair trade practice adopted by any trader the complainant has suffered loss or damage;
(ii)Â the goods mentioned in the complaint suffer from one or more defects;
(iii) the services mentioned in the complaint suffer from deficiency in and respect;
(iv) a trader has charged for the goods mentioned in the complaint as price in excess of the price fixed by or under any law for the time being in force or displayed on the goods or any package containing such goods;
with a view to obtaining any relief provided by or under this Act;
The learned Counsel for the complainant has tried to bring his case under Clause 4 of Clause-C. But it is not the case of the complainant that the price of the car has been fixed by or under any law. Therefore, even if a dealer asks for allegedly excess price the complaint was not maintainable under the Act. We are supported in our view by the several decisions of the National Commission with similar facts. The National Commission has hold so in the case of Maruti Udyog Limited v. Kodaikkanal Township and Others, III (1993) CPJ 294 (NC)=(1993) 1 CTJ 26 and in the case of Maruti Udyog Limited v. Bhuvana Vishwanathan and Others, II (1993) CPJ 172 (NC)=(1993) 1 CTJ 186, it has been held that the delay in the delivery of Motor Car is case of sales of goods simplicitor and it does not involve rendering of any service and there was no hiring of service.
7. Before we conclude we would like to mention that composite order can not be passed by a Court. Without hearing the O.Ps. the District Forum had directed for payment of Rs. 50,000/- as compensation and they proceeded under Section 27 of the Act which is completely against the principles of justice and fair plays.
8. Under the circumstances we find that the impugned order of the District Forum can not be sustained.
9. In the result these two appeals are allowed, the impugned order is hereby set aside.
There is no order as to costs.
Appeals allowed.